J-S13027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES R. HOUSEHOLDER
Appellant No. 1001 WDA 2015
Appeal from the Judgment of Sentence Entered April 14, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at Nos: CP-65-CR-0004746-2012, CP-65-CR-0004747-
2012, CP-65-CR-0004748-2012
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 22, 2016
Appellant, James Householder, appeals from the April 14, 2015
judgment of sentence entered in the Court of Common Pleas of
Westmoreland County following his sentence to an aggregate twenty-four to
forty-eight years of incarceration. Upon review, we affirm.
The trial court summarized the relevant background as follows.
[Appellant], was charged with the following crimes:
At Case Number 4746 C 2012:
Count 1 - Criminal Attempt - Rape of a Child, 18 Pa.C.S.A.
§ 901(a), 1st degree felony. (Swissvale)
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Count 2 - Criminal Attempt - Aggravated Indecent Assault, 18
Pa.C.S.A. § 901(a), 2nd degree felony. (Swissvale)
Count 3 - Indecent Assault of a Child, 18 Pa.C.S.A. § 3126(a)(7),
1st degree misdemeanor. (Swissvale)
Count 4 - Criminal Attempt - Rape of a Child, 18 Pa.C.S.A.
§ 901(a), 1st degree felony. (Arnold)
Count 5 - Criminal Attempt - Aggravated Indecent Assault, 18
Pa.C.S.A. § 901(a), 1st degree felony. (Arnold)
Count 6 - Indecent Assault of a Child, 18 Pa.C.S.A. § 3126(a)(7),
3rd degree felony. (Arnold)
Count 7 - Criminal Attempt - Rape of a Child, 18 Pa.C.S.A.
§ 901(a), 1st degree felony. (Lower Burrell)
Count 8 - Involuntary Deviate Sexual Intercourse - Less than 13
Years of Age, 18 Pa.C.S.A. § 3123(b), 1st degree felony. (Lower
Burrell)
Count 9 - Aggravated Indecent Assault, 18 Pa.C.S.A. § 3125(b),
1st degree felony. (Lower Burrell)
Count 10 - Indecent Assault of a Child, 18 Pa.C.S.A.
§ 3126(a)(7), 3rd degree felony. (Lower Burrell)
Count 11 - Indecent Assault - lack of consent, 18 Pa.C.S.A.
§ 3126(a)(1), 2nd degree misdemeanor. (Lower Burrell)
Count 12 - Indecent Assault - lack of consent, 18 Pa.C.S.A.
§ 3126(a)(1), 2nd degree misdemeanor. (Allegheny Township)
Count 13 - Endangering Welfare of Children, 18 Pa.C.S.A.
§ 4304(a)(1), 3rd degree felony.
Count 14 - Indecent Exposure, 18 Pa.C.S.A. § 3127(a), 1st
degree misdemeanor.
Count 15 - Corruption of Minors, 18 Pa.C.S.A. § 6301(a)(1), 1st
degree misdemeanor.
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Count 16 - Corruption of Minors, 18 Pa.C.S.A. § 6301(a)(1)(ii),
3rd degree felony.
At Case Number 4747 C 2012:
Count 1 - Indecent Assault - forcible compulsion, 18 Pa.C.S.A.
§ 3126(a)(2), 1st degree misdemeanor. (Lower Burrell)
Count 2 - Indecent Assault on a child under 16, [Appellant] at
least 4 years older, 18 Pa.C.S.A. § 3126(a)(8), 2nd degree
misdemeanor. (Lower Burrell)
Count 3 - Indecent Assault - forcible compulsion, 18 Pa.C.S.A.
§ 3126(a)(2), 1st degree misdemeanor. (Natrona)
Count 4 - Indecent Assault on a child under 16, [Appellant] at
least 4 years older, 18 Pa.C.S.A. § 3126(a)(8), 2nd degree
misdemeanor. (Natrona)
Count 5 - Criminal Attempt - Aggravated Indecent Assault, 18
Pa.C.S.A. § 901(a), 2nd degree felony. (Allegheny Township)
Count 6 - Indecent Assault - forcible compulsion, 18 Pa.C.S.A.
§ 3126(a)(2), 1st degree misdemeanor. (Allegheny Township)
Count 7 - Indecent Assault - lack of consent, 18 Pa.C.S.A.
§ 3126(a)(1), 2nd degree misdemeanor. (Allegheny Township)
Count 8 - Indecent Assault - forcible compulsion, 18 Pa.C.S.A.
§ 3126(a)(2), 1st degree misdemeanor.
Count 9 - Indecent Assault on a child under 16, [Appellant] at
least 4 years older, 18 Pa.C.S.A. § 3126(a)(8), 2nd degree
misdemeanor.
Count 10 - Unlawful Contact or Communication With Minor, 18
Pa.C.S.A. § 6318(a)(1), 3rd degree felony.
Count 11 - Corruption of Minors, 18 Pa.C.S.A. § 6301(a)(1)(ii),
3rd degree felony.
Count 12 - Corruption of Minors, 18 Pa.C.S.A. § 6301(a)(1), 1st
degree misdemeanor.
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Count 13 - Indecent Exposure, 18 Pa.C.S.A. § 3127(a), 2nd
degree misdemeanor.
Count 14 - Criminal Use of a Communication Facility, 18
Pa.C.S.A. § 7512(a), 3rd degree felony.
At Case Number 4748 C 2012:
Count 1 - Indecent Assault of a Child, 18 Pa.C.S.A. § 3126(a)(7),
3rd degree felony.
Count 2 - Indecent Assault - lack of consent, 18 Pa.C.S.A.
§ 3126(a)(1), 2nd degree misdemeanor.
Count 3 - Indecent Assault on child under 16, [Appellant] at
least 4 years older, in 18 Pa.C.S.A. 3126(a)(8), 2nd degree
misdemeanor.
Count 4 - Unlawful Contact or Communication With Minor, 18
Pa.C.S.A. § 6318(a)(1), 3rd degree felony.
The charges stem from an investigation by Detective Scott
A. Cardenas (hereinafter “Det. Cardenas”) of the Lower Burrell
Police Department into the report received from Westmoreland
County Children’s Bureau regarding suspected child sexual abuse
of S.A., E.B., and E.S. The initial report indicated that a female
juvenile, E.B. had disclosed that she had been sexually assaulted
by a known adult male, [Appellant]. During Det. Cardenas’
interview of E.B., E.B. reported that she believed two other
female juvenile’s, S.A. and E.S., had also been sexually
assaulted by [Appellant]. During their interviews, both S.A. and
E.S. reported that [Appellant] had sexually assaulted them.
Following [Appellant]’s arrest, Magisterial District Judge Cheryl J.
Peck-Yakopec conducted a preliminary hearing on December 4,
2012, and held the case for court. A criminal information was
filed at each case number charging [Appellant] with the above-
mentioned crimes. On January 28, 2013, the Commonwealth
filed notice of its intent to consolidate the three above-captioned
cases for trial. Jury selection commenced on August 4, 2014,
and a trial by jury was conducted August 5, 2014 through
August 8, 2014.
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On August 8, 2014, with the exception of Count 1 at case
number 4746 C 2012, which was withdrawn by the
Commonwealth during the trial, [Appellant] was found guilty on
all counts at each case number. At that time, bond was
revoked, a Pre-Sentence Investigation and a SORNA[, Sex
Offender Registration and Notification Act,] Assessment were
ordered, and, at the request of [Appellant], Defense Counsel’s
Motion to Withdraw was granted. On August 12, 2014, Brian D.
Aston, Esquire was appointed to represent [Appellant]. On
September 17, 2014, at case number 4746 C 2012, the
Commonwealth provided notice of its intent to proceed under the
mandatory sentencing provisions of 42 Pa.C.S.A. § 9718 with
respect to:
Count 8, Involuntary Deviate Sexual Intercourse, 18
Pa.C.S.A. § 3123(b). Pursuant to 42 Pa.C.S.A.
§ 9718(a)(1), [Appellant] shall be sentenced to a
mandatory term of imprisonment not less than ten
years.
Count 9, Aggravated Indecent Assault of a Child, 18
Pa.C.S.A. § 3125(b). Pursuant to 42 Pa. C.S.A.
§ 9718(a)(3), [Appellant] shall be sentenced to a
mandatory term of imprisonment not less than ten
years.
On October 21, 2014, the Commonwealth filed a Praecipe
pursuant to 42 Pa.C.S.A. § 9795.4 to request a sexually violent
predator determination hearing and the same was granted.
On November 24, 2014, after the Sexually Violent Predator
Hearing and Sentencing Hearing were held, this [c]ourt found
[Appellant] to be [a] Tier III Sexually Violent Predator. At Count
8 of case number 4746 C 2012, pursuant to the mandatory
sentencing provisions of 42 Pa.C.S.A. § 9718(a)(1), [Appellant]
was sentenced to a state correctional institution for a period of
not less than ten (10) years nor more than twenty (20) years.
At Count 9, pursuant to the mandatory sentencing guidelines of
42 Pa.C.S.A. § 9718(a)(3), [Appellant] was sentenced to a
period of not less than ten (10) years nor more than twenty (20)
years, consecutive to Count 8. All other Counts at said case
number were sentenced within the sentencing guidelines
standard range and were sentenced concurrent to Count 8.
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At Count 5 of case number 4747 C 2012, [Appellant] was
sentenced to a state correctional institution for a period of not
less than three (3) years nor more than six (6) years,
consecutive to case number 4746 C 2012. With the exception of
Count 7, which merged with Count 5 for sentencing purposes, all
other Counts at said case number were sentenced within the
sentencing guidelines standard range and were sentenced
concurrent to Count 5.
At Count 1 of case number 4748 C 2012, [Appellant] was
sentenced to a state correctional institution for a period of not
less than one (1) year nor more than two (2) years consecutive
to case numbers 4746 C 2012 and 4747 C 2012. All other
Counts at said case number were sentenced within the standard
range and concurrent to Count 1. [Appellant] was determined to
not be RRRI eligible and was given credit for time served at all
three case numbers. . . .
....
At case number 4746 C 2012, female victim, S.A., testified
that she was five years old when [Appellant], her stepfather and
whom she knew as “dad,” started touching her inappropriately.
N.T. [Jury Trial (N.T.), 8/4-8/14, at] 187. At the time, S.A., her
sister, L.A., their mother, and [Appellant] resided in Swissvale,
Pennsylvania. [Id.] . . . [Appellant]’s sexual abuse progressed
when the family moved to Arnold, Pennsylvania. [Id. at] 192-
193. At that time, S.A. was in second grade and around seven
or eight years old. [Id. at] 192, 197. . . .
Around December of 2003, when S.A. was approximately
eight years old and in third grade, [Appellant] and S.A.’s mother
separated and [Appellant] moved into his mother’s house in
Lower Burrell. [Id. at] 200-201. S.A. and L.A. would spend
each weekend, including overnights, and evening weekday visits,
with [Appellant] at his mother’s house. [Id. at] 201. In the
Lower Burrell home, [Appellant], on more than one occasion,
continued to touch S.A.’s unclothed vagina with his hand and
penis. [Id. at] 203-204. When she was approximately eleven to
thirteen years old, [Appellant] continued touching her in that
manner, but he also began to orally lick S.A.’s vagina on
numerous occasions. [Id. at] 203. . . .
S.A. hit puberty when she was around eleven to thirteen
years old. [Id. at] 208. Around that time, S.A. started
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developing breasts and S.A. testified that once she developed
breasts, [Appellant] would, underneath her clothing, touch her
breasts with his hands and orally lick them. [Id. at] 208. . . .
S.A. and E.B. met in sixth grade at school and became best
friends. [Id. at] 210. When S.A. and E.B. were in eighth or
ninth grade, E.B. started going to [Appellant]’s mothers’ house
in Lower Burrell with S.A. and L.A. [Id. at] 210-211, 239. . . .
....
In early 2012, when S.A. was approximately sixteen years
old, [Appellant] moved into his own apartment in Allegheny
Township where S.A., L.A., and E.B. continued to visit. [Id. at]
220-221, 260-261. At that location, S.A. saw [Appellant] expose
himself and masturbate in the kitchen in front of S.A. and E.B.
[Id. at] 221. Although S.A. was not aware because she was
sleeping, E.B. told S.A. that, while S.A. was sleeping, [Appellant]
was doing things to her. [Id. at] 222-224. S.A. did not tell any
adult about the sexual abuse until, in 2012, E.B. told her
boyfriend and his family contacted the police. [Id. at] 225-226.
When S.A. became aware that the police had been notified, S.A.
told her mother about the years of sexual abuse, although
without E.B.’s disclosure, S.A. had no intention of telling anyone.
[Id. at] 226.
At Case Number 4748 C 2012, E.S. testified that S.A. and
L.A. are her cousins and that she knows E.B. as S.A. and L.A.’s
friend. [Id. at] 271-272. In approximately 2007 or 2008, when
E.S. was in fifth grade and about ten or eleven years old,
[Appellant] would bring S.A., L.A., and E.B. to E.S.’s father’s
house in Natrona, PA. [Id. at] 272-273, 285. [Appellant], S.A.,
L.A., and E.B. would stay overnight at the house for a few days.
[Id. at] 274. E.S. stated that [Appellant] would invade her
personal space and touch her in ways that she really didn’t want
him to in the house. [Id. at] 275-276. Specifically, E.S.
testified that [Appellant] would touch her chest and bottom area
by grabbing her with his hands. [Id. at] 276. Regarding
[Appellant] touching her chest, E.S. stated that [Appellant]
“would pick [her] up and spin [her], or he would grab [her] and
not let [her] go.” [Id.]. Most of the time, [Appellant] would
touch her on top of her clothing, however, occasionally he would
touch her underneath her clothing. [Id. at] 277. . . .
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E.S. testified that she saw [Appellant] do the same type of
things to E.B. and S.A. [Id. at] 279-281. In the house and on
multiple occasions, E.S. saw [Appellant] touch E.B.’s chest
underneath and on top of her clothing with his hand and saw
[Appellant] touch E.B.’s butt and crotch on top of her clothing
with his hand. [Id. at] 281. . . . E.S. also saw [Appellant] grab
S.A.’s chest during horseplay and when S.A. was sleeping. [Id.
at] 289. . . .
At Case Number 4747 C 2012, E.B. testified that she and
S.A. became friends in sixth grade. [Id. at] 346-347. During
that school year, E.B. started sleeping over with S.A. at
[Appellant]’s mothers’ house in Lower Burrell. [Id. at] 348.
When E.B. was around twelve years old and she and S.A. were
sleeping on an air mattress at the Lower Burrell house,
[Appellant] started touching her breasts underneath her clothes,
but on top of her bra. [Id. at] 350, 366. E B. testified that S.A.
said the same thing was happening to her. [Id. at] 352. . . .
....
E. B. did not disclose the abuse until she had a breakdown
during a self defense class that she was taking in August of
2012. [Id. at] 369. At that time, she disclosed the abuse to her
boyfriend and his family, who then contacted the police. [Id. at]
369-370. E.B. testified that she did not want [Appellant] to
touch her, she did not consent to it, and she only returned to the
house for the sleepovers because she wanted to still be friends
with S.A., protect S.A., and make sure S.A. didn’t get hurt. [Id.
at] 371-372. E.B. did not disclose the abuse because she was
concerned that S.A. would be mad at her and because they
agreed, after disclosing the abuse to each other, that they
wouldn’t say anything to anyone. [Id. at] 372-373. E.B. and
S.A. have not been friends since E.B. reported the abuse. [Id.
at] 371. E.B. testified that [Appellant] touched her
inappropriately from the time she was thirteen years old until
she was eighteen years old. [Id. at] 380.
Trial Court Opinion (T.C.O.), 3/6/15, at 1-10.
After imposition of his November 24, 2014 sentence, on December 4,
2014, Appellant timely filed a post-sentence motion alleging, inter alia, that
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the verdict was against the weight of the evidence and that he was serving
an illegal sentence. A hearing on Appellant’s post-sentence motion was held
on January 16, 2015. On March 6, 2015, the trial court issued its opinion,
wherein, the trial court denied Appellant’s weight claim and determined that
Appellant’s sentence imposed on Counts 8 and 9 of case number 4746 C
2012 was indeed illegal in light of Commonwealth v. Wolfe, 106 A.3d 800
(Pa. Super. 2014) appeal granted, 121 A.3d 433 (Pa. 2015).1 The trial court
resentenced Appellant on April 14, 2015, determining that the initial period
of incarceration of ten to twenty years on each of Count 8 and Count 9 was
appropriate.
On June 22, 2015, the trial court granted Appellant’s petition to appeal
nunc pro tunc. As ordered, Appellant filed a Pa.R.A.P. 1925(b) statement of
errors. As the issues Appellant raised in his Rule 1925(b) statement were
the same as in his post-sentence motion, the trial court adopted its March 6,
2015 opinion as its Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises two issues for our review:
1. Whether the jury erred by finding there was sufficient evidence to
convict [Appellant] of all of the charges in the instant matter.
2. Whether the verdicts of guilt in the instant matter were rendered
against the weight of the evidence.
____________________________________________
1
On Counts 8 and 9 of case number 4746 C 2012, the trial court sentenced
Appellant pursuant to 42 Pa.C.S. § 9718(a)(1), a mandatory minimum
sentencing provision that this Court had since declared unconstitutional.
See Wolfe, 106 A.3d 800.
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Appellant’s Brief at 3.
Appellant first challenges the sufficiency of the evidence. In reviewing
a sufficiency of the evidence claim, we determine “whether the evidence at
trial, and all reasonable inferences derived therefrom, when viewed in the
light most favorable to the Commonwealth as verdict winner, are sufficient
to establish all elements of the offense beyond a reasonable doubt.”
Commonwealth v. Stevenson, 894 A.2d 759, 773 (Pa. Super. 2006).
Additionally, we do not reweigh evidence, substituting our judgement for
that of the fact-finder. Id. “The fact-finder, when evaluating the credibility
and weight of the evidence, is free to believe all, part, or none of the
evidence.” Id. “The evidence at trial need not preclude every possibility of
innocence, and the fact-finder is free to resolve any doubts regarding an
[Appellant]’s guilt unless the evidence is so weak and inconclusive that as a
matter of law no facts supporting a finding of guilt may be drawn.” Id.
Appellant challenges sufficiency with respect to his charges of criminal
attempt, indecent assault, involuntary deviate sexual intercourse,
aggravated indecent assault, endangering welfare of children, indecent
exposure, corruption of minors, unlawful contact with a minor, and criminal
use of communication facility.2 Appellant argues only that, to the extent age
is an element of the aforementioned crimes, there was “insufficient evidence
____________________________________________
2
Respectively, 18 Pa.C.S.A. § 901, 3126, 3123, 3125, 4304, 3127, 6301,
6318, and 7512.
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to support findings concerning the ages of the individuals at the time the
incidents allegedly occurred.” Appellant’s Brief at 15.
To the contrary, the ages of the victims, S.A., E.S., and E.B., are
readily discernable from the record. As the trial court noted, S.A., E.S., and
E.B. testified that they were, respectively, five, ten or eleven, and twelve
years old at the time Appellant began touching them inappropriately.
T.C.O., 3/6/15, at 5-8; see, e.g., N.T., 8/4-8/14/14, at 187, 271-273, 285,
350. Further, as detailed above, the victims testified the abuse occurred
consistently for several years. There was ample evidence to support findings
concerning the victims’ ages. Appellant is therefore not entitled to relief on
his first issue.
In his second issue, Appellant alleges the verdict is against the weight
of the evidence. Appellant has preserved his weight claim through his post-
sentence motion. Pa.R.Crim.P. 607. We review a challenge to the weight of
the evidence according to the following standard.
The weight given to trial evidence is a choice for the
factfinder. If the factfinder returns a guilty verdict, and if a
criminal [Appellant] then files a motion for a new trial on the
basis that the verdict was against the weight of the evidence, a
trial court is not to grant relief unless the verdict is so contrary
to the evidence as to shock one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court
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determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion, whether or
not that decision is the one we might have made in the first
instance.
Moreover, when evaluating a trial court’s ruling, we keep
in mind that an abuse of discretion is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will,
manifest unreasonableness or a misapplication of the law. By
contrast, a proper exercise of discretion conforms to the law and
is based on the facts of record.
Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (citation
omitted).
Appellant asserts the verdict is against the weight of the evidence,
because “[t]he alleged victims were not definitive enough to allow a jury to
determine their ages at the time of the alleged inappropriate contact,” “the
testimony between the various alleged victims was conflicting,” and “their
testimony conflicted with statements given to the police and their prior
testimony.” Appellant’s Brief at 15-16. Appellant claims that these
“inconsistencies” render the victims’ testimony “suspect and unreliable” and
we should therefore vacate Appellant’s judgment of sentence.
Appellant’s failure to adequately specify how the victims’ testimony
failed to indicate at what ages the victims were at the time Appellant began
his inappropriate contact with them, what part or parts of the victims’
testimony were conflicting, and what part or parts of the victims’ testimony
conflicted with which statements given to the police or with which prior
testimony may constitute sufficient grounds to find waiver on these issues.
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See Pa.R.A.P. 2119(c). Nonetheless, we will address Appellant’s weight
claim to the extent we are able to discern Appellant’s arguments.
In disposing of Appellant’s weight claim, the trial court held the
following.
In the case sub judice, each victim testified regarding the
multiple incidents of sexual abuse perpetrated by [Appellant].
[Appellant] argues that the testimony between the various
victims conflicted with statements given to police and their prior
testimony and, during the trial, prior defense counsel questioned
the witnesses regarding alleged inconsistencies. Ultimately, the
jury found [Appellant] guilty beyond a reasonable doubt of all
thirty-three (33) counts. The jury was certainly capable of
determining whether to believe all, part, or none of the evidence
with respect to whether the Commonwealth met its burden with
respect to each count and to determine the credibility of each
witness. Based upon this [c]ourt’s review of the entire record,
this [c]ourt does not find that the jury’s verdict is so contrary to
the evidence as to shock this [c]ourt’s sense of justice.
Therefore, this [c]ourt does not find that the jury’s verdict was
against the weight of the evidence.
T.C.O., 3/6/15, at 16-17. Additionally, the trial court found the victims’
testimony credible, noting that, “during the trial, each victim testified to the
type of abuse that occurred at each location and their approximate age at
the time.” Id. at 16. As Appellant has not indicated which “inconsistencies”
within the nearly 700 pages of the notes of testimony from the jury trial
render the victims’ testimony “suspect and unreliable,” we agree with the
trial court’s determination that the jury heard defense counsel’s questioning
regarding any “alleged inconsistencies” and could have reasonably
determined Appellant’s guilt. Accordingly, we hold the trial court did not
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abuse its discretion in finding the jury’s verdict was not shocking to one’s
sense of justice.
As Appellant is not entitled to relief on either of his issues raised on
appeal, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Lazarus joins this memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2016
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